“Clear and Convincing Evidence” Now the Standard for Sex Offender Classification in Massachusetts

SUMMARY: In an earth-shifting case, the Massachusetts Supreme Judicial Court (SJC) increased the standard of proof necessary for the Sex Offender Registry Board (SORB) to classify a convicted sex offender. The SJC increased the burden to a “clear and convincing” standard, replacing the older “preponderance of the evidence” standard.

DECISION: Unanimous, 7-0, opinion by Justice Lenk vacating the Superior Court’s order affirming the sex offender classification level, and remanding with instructions to Superior Court to enter an order requiring SORB to conduct a new evidentiary hearing based on the new “clear and convincing” evidence standard.

The plaintiff was a convicted sex offender who was classified by the Massachusetts Sex Offender Registry Board (SORB) as having a “moderate” risk of reoffense, and therefore categorized him as a Level Two sex offender.

SORB classified the plaintiff under the “preponderance of the evidence” standard, meaning they only needed a preponderance of evidence as proof of his risk to reoffend in order to classify him at that risk level. This “preponderance of the evidence” standard had been promulgated by the Massachusetts Supreme Judicial Court (SJC) in 1998 in the case of Doe No.972 v. Sex Offender Registry Board, 428 Mass. 90 (1998 .

The plaintiff challenged the review in Superior Court, which affirmed the level two classification.

The plaintiff filed for, and the SJC granted him direct appellate review.

At the SJC, the plaintiff argued Due Process required that the standard for sex offender classification be changed to “clear and convincing evidence” in place of the then-prevailing “preponderance of the evidence” standard. The plaintiff also argued that his classification as a level two should be reversed because it did not meet this new standard, and also that SORB be ordered to stop publishing his registry data on the internet because the law requiring such internet publication was not retroactive to him.

OPINION:

The SJC changed the standard to clear and convincing evidence; ordered the Superior Court to order a new SORB hearing for the plaintiff and to order SORB to cease publishing the plaintiff’ information on the internet until his new SORB level was established.

The SJC specified that the higher standard should only be applied to pending SORB cases or cases currently on appeal from SORB classifications.

The SJC found that the change in standard was appropriate because the “risk classifications that SORB must make now have consequences for those who are classified that are far greater than was the case when we decided Doe No. 972. The preponderance standard no longer adequately protects against the possibility that those consequences might be visited upon individuals who do not pose the requisite degree of risk and dangerousness.”

The SJC was concerned with overruling the previous standard, but found that the “flexible nature of the procedural due process right at issue” and the in this case, and given the substantial changes to the sex offender registry law and other developments”, overruling the previous standard was acceptable.

The SJC detailed the burdensome legislative changes since the 1998 ruling which set the “preponderance of the evidence” standard: “Legislative changes have more often imposed extra burdens on registered offenders than provided them with additional protections. More offenses are now subject to a registration requirement. Sex offenders face increasingly stringent affirmative reporting requirements, and the penalties for failing to meet those requirements are harsher. They are also confronted with other limitations based on their registered sex offender status. Information about registered offenders is being disseminated more broadly, including on the Internet. Furthermore, there is reason to question whether SORB’s risk classification guidelines continue to reflect accurately current scholarship regarding statutory factors that concern risk assessment.”

“Furthermore, offenders face difficulty finding work and housing. Stigma accounts for some of this difficulty  employers and landlords often prefer to avoid the perceived risks of having a convicted sex offender on site. … Many restrictions also have been codified. For example, sex offenders are subject to criminal penalties for engaging in ice cream truck vending, regardless of whether their offense involved harm to a child… Moreover, households that include a person subject to a lifetime registration requirement under a State sex offender registration program are no longer eligible for certain Federal housing programs. … Level three sex offenders also face criminal penalties for living in a nursing home….Such restrictions likely intensify the stigma associated with being a registered offender.”

The SJC was particularly concerned with the internetn publication requirements, citing them as a particular burden on privacy interests: “[w]here previously the time and resource constraints of local police departments set functional limits on the dissemination of registry information, the Internet allows for around-the-clock, instantaneous, and worldwide access to that information  a virtual sword of Damocles. … Consequences of such public dissemination may include housing and employment discrimination, harassment, and assault.”

“Further, should a sex offender later be reclassified to level one such that Internet dissemination is no longer required, information posted on the Internet is never truly forgotten.”

The SJC balanced the privacy interests of sex offenders with their risk of erroneous deprivation, the value of additional safeguards, and the governmental interests, citing Mathews v. Eldridge 424 U.S. 319 (1976) for these factors.

The SJC found the balance weighed in the offenders’ favor, requiring the standard be changed to clear and convincing evidence.

ANALYSIS:

The case was a sea change in sex offender classification, increasing the burden on SORB in proving classification at any level.

The immediate repercussion was a huge backlog of individuals at SORB who needed to be reclassified under the new standard, although the SJC made clear in a footnote that the new standard only applied to new and pending SORB cases and appeals, not to SORB classifications already established and not appealed.

The case also has a good discussion of stare decisis and the standard for overruling previous decisions in Massachusetts state courts.